United States of America v. Matthew McCoy

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3895
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Matthew McCoy,
lllllllllllllllllllllDefendant - Appellant.
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: September 19, 2023
Filed: July 15, 2024
____________
Before SMITH,1 Chief Judge, LOKEN, COLLOTON,2 GRUENDER, BENTON,
SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, and KOBES, Circuit Judges,
En Banc.
____________
1Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).
2Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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COLLOTON, Circuit Judge.
Matthew McCoy appeals his convictions for two counts of sexual exploitation
of a minor. We conclude that there was sufficient evidence to support the jury’s
verdicts and no reversible error at trial. We therefore affirm the judgment of the
district court.3
I.
In 2018, McCoy’s wife found a flash drive that contained two videos of a
minor female that revealed her pubic area and genitals. The minor was a fifteen-year-
old relative of McCoy’s who often visited the McCoy residence.
During one visit on October 15, 2017, the minor wanted to take a shower. She
started to prepare for a shower in the guest bathroom, but the bathtub was filled with
baby toys. She asked McCoy what she should do about the toys, and McCoy told her
to use the shower in the master bathroom.
The minor followed McCoy’s instructions and showered in the master
bathroom. Unbeknownst to the teenager, McCoy had placed a hidden camera in a
closet attached to the bathroom. McCoy positioned the camera low to the ground and
aimed it toward the area between the toilet and shower. The camera recorded the
minor in the nude before and after she showered.
In the first video, the minor is shown preparing for a shower. The recording
begins with a side profile of the teen seated on the toilet, with only her legs, arms, and
head visible. Then she stands up and reveals her entire nude body. The minor
3The Honorable D.P. Marshall, Jr., United States District Judge for the Eastern
District of Arkansas.
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examines herself in an off-screen mirror while posing in different positions. She
jumps up and down several times, causing her breasts to bounce in view of the
camera. The minor then caresses her breasts in a circular motion while watching
herself in the mirror. She twice faces toward the hidden camera, revealing her pubic
area.
The second video shows the minor exiting the shower and drying off with a
towel. At first, she is shown behind a glass shower door. She then moves into the
open area where the camera captures her nude body. At that point, the minor is facing
away from the camera and bending over forward at the waist, revealing a straight-on
view of her genitals from behind.
Based on the production of the two videos, a grand jury charged McCoy with
two counts of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a). The
indictment charged that McCoy employed, used, persuaded, induced, enticed, and
coerced the minor to engage in sexually explicit conduct for the purpose of producing
a visual depiction of such conduct. The sexually explicit conduct alleged was the
lascivious exhibition of the genitals and pubic area.
The case proceeded to trial. During a conference on jury instructions, the court
presented proposed instructions on the elements of the offense (Instruction No. 11)
and the meaning of “lascivious exhibition” (Instruction No. 12). Both instructions
were drawn from this court’s precedents interpreting 18 U.S.C. §§ 2251(a) and
2256(2); both mirrored the Eighth Circuit Model Jury Instructions. McCoy stated
that he had no objection to the instructions, and the court used them when charging
the jury.
McCoy moved for judgment of acquittal at the close of the government’s case
and at the close of all the evidence. See Fed. R. Crim. P. 29(a). The district court
denied the motions and submitted the case to the jury. The court observed that
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McCoy was the “master of these cameras,” and that the minor was “confident” that
McCoy had steered her to use the master bathroom. The court noted that not every
video of a child in a bathroom would portray lascivious conduct, but explained that
“here we have a teenager, a young woman, a teenage girl, and the videos speak for
themselves on the kinds of things she was doing in the bathroom that teenagers do.”
The jury convicted McCoy on both counts. The court imposed sentence, and McCoy
appeals the convictions.
II.
A.
McCoy argues on appeal that the district court abused its discretion when
instructing the jury. McCoy stated during the trial, however, that he had no objection
to the jury instructions, so we review only for plain error. Fed. R. Crim. P. 52(b);
United States v. Gaona-Lopez, 408 F.3d 500, 506 (8th Cir. 2005).
McCoy disputes Instruction No. 12 regarding lascivious exhibition of the
genitals or pubic area. The court gave the following instruction:
To decide whether a visual depiction of the genitals or pubic area
constitutes a lascivious exhibition, you must consider the overall content
of the material. You may consider factors like (1) whether the focal
point of the picture is on the minor’s genitals or pubic area; (2) whether
the setting of the picture is sexually suggestive—that is, in a place or
pose generally associated with sexual activity; (3) whether the minor is
depicted in an unnatural pose or in inappropriate attire, considering the
age of the minor; (4) whether the minor is fully or partially clothed, or
nude; (5) whether the picture suggests sexual coyness or a willingness
to engage in sexual activity; (6) whether the picture is intended or
designed to elicit a sexual response in the viewer; (7) whether the
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picture portrays the minor as a sexual object; and (8) any captions on the
pictures.
You decide what weight, if any, to give to each of these factors.
A picture need not involve all of these factors to constitute a lascivious
exhibition of the genitals or pubic area.
McCoy argues that the district court erred by giving this instruction and should
instead have used an instruction derived from a divided panel decision in another
circuit that was filed after the trial in this case. See United States v. Hillie, 39 F.4th
674 (D.C. Cir. 2022).
The district court’s instruction was not plainly erroneous. To the contrary, the
instruction was drawn directly from this court’s decisions. The factors listed in the
instruction build on six criteria identified by the court in United States v. Dost, 636
F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812
F.2d 1239 (9th Cir. 1987). The Dost factors and two others discussed in United
States v. Arvin, 900 F.2d 1385, 1390-92, 1390 n.4 (9th Cir. 1990), have been
incorporated into the Eighth Circuit Model Criminal Jury Instruction. This court has
approved the use of the eight non-exhaustive criteria and remarked that they “impose
useful discipline on the jury’s deliberations.” United States v. Ward, 686 F.3d 879,
882 (8th Cir. 2012) (quoting United States v. Rivera, 546 F.3d 245, 253 (2d Cir.
2008)); see United States v. Lohse, 797 F.3d 515, 520 (8th Cir. 2015); United States
v. Johnson, 639 F.3d 433, 439 (8th Cir. 2011); United States v. Wallenfang, 568 F.3d
649, 657 (8th Cir. 2009); United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999).
The district court did not plainly err by instructing the jury in accordance with settled
circuit precedent.4
4The dissenters disregard McCoy’s forfeiture and argue that a jury should be
instructed to apply the term “lascivious” standing alone, because “‘[l]ascivious’ is no
different in its meaning than ‘lewd,’ a commonsensical term.” Post, at 23 (quoting
United States v. Koelling, 992 F.2d 817, 821 (8th Cir. 1993)). Koelling, however,
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McCoy also challenges the district court’s definition of the term “used” in
Instruction No. 11. The court stated that “[a] person is ‘used’ if they are
photographed or videotaped.” McCoy complains that the court should not have
defined “used” without also defining other statutory terms. He further asserts that the
instruction on “used” was an incomplete statement of the law because it did not refer
to the minor engaging in sexually explicit conduct.
There was no plain error on this issue. The challenged instruction was virtually
identical to an instruction in Lohse that this court held not plainly erroneous. 797
F.3d at 519, 521. The instruction in this case further explained that to proceed on a
theory of “use,” the government was required to prove not merely that McCoy “used”
the minor, but that he “used” the minor “to engage in sexually explicit conduct.” This
instruction, too, is consistent with circuit precedent. See United States v. Vanhorn,
740 F.3d 1166, 1168 (8th Cir. 2014); United States v. McCloud, 590 F.3d 560, 566
(8th Cir. 2009); United States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007). McCoy did
not object to the instruction or explain why the court should also have instructed on
the meaning of “employed,” “persuaded,” “induced,” “enticed,” and
“coerced”—terms that the court reasonably could have deemed self-explanatory. The
court further instructed that it was the jury’s job “to decide what happened,” that the
jurors alone were “the judges of the facts,” and that the jury should not take any
quoted Wiegand, the decision that affirmed the conviction in Dost. See 812 F.2d at
1243. Applying the “commonsensical term” of “lascivious,” Wiegand criticized the
Dost factors as “over-generous to the defendant,” and concluded that “lasciviousness
is not a characteristic of the child photographed but of the exhibition which the
photographer sets up for an audience that consists of himself or likeminded
pedophiles.” Id. at 1244. Wiegand held that the statute is violated by production of
“a picture of a child’s sex organs displayed lasciviously—that is, so presented by the
photographer as to arouse or satisfy the sexual cravings of a voyeur.” Id. Because
McCoy forfeited any challenge to settled circuit law, and the government also agreed
with the jury instructions, we need not address whether the instructions were over-
generous to the defendant.
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statement by the judge to suggest what decision the jury should make. There was no
plain error under settled law. See United States v. Hensley, 982 F.3d 1147, 1161 (8th
Cir. 2020).
B.
1.
McCoy next challenges the sufficiency of the evidence to support the
convictions under 18 U.S.C. § 2251(a). In so doing, he reiterates his argument that
the court should apply a legal standard under §§ 2251(a) and 2256(2) that is taken
from the decision of another circuit in Hillie. The suggested standard differs from our
settled circuit precedent and from the jury instructions to which McCoy made no
objection. McCoy’s contention fails under the plain-error rule.
Although McCoy preserved a challenge to the sufficiency of the evidence
under existing circuit law, he did not preserve a challenge to the meaning of the
statute. The essence of McCoy’s argument on appeal “‘is that there was insufficient
evidence to convict him under [a] jury instruction that the court should have given,’
despite his acquiescence to the instruction the court actually gave.” United States v.
McRae, 702 F.3d 806, 835 (5th Cir. 2012) (quoting United States v. Fontenot, 611
F.3d 734, 737 (11th Cir. 2010)). In that situation, we review his sufficiency challenge
for plain error only. Id. at 835; Fontenot, 611 F.3d at 737; United States v. Walker,
596 F. App’x 302, 310-11 (5th Cir. 2015); United States v. Joseph, 567 F. App’x 844,
847-48 (11th Cir. 2014). McCoy conceded this point at oral argument and
acknowledged that plain-error review applies.
A defendant may not recharacterize a challenge to a jury instruction as a
sufficiency-of-the-evidence claim to avoid his forfeiture. “If a defendant could obtain
de novo review of what should have been charged by challenging evidentiary
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sufficiency, he could work an end-run around forfeiture of a challenge to jury
instructions.” McRae, 702 F.3d at 835 n.14. In other words, “‘[a] defendant cannot
make out a sufficiency challenge as to offense elements that the government had no
requirement to prove at trial under then-prevailing law.’ Otherwise, a defendant
could repackage a claim of jury instruction error as a sufficiency-of-the-evidence
challenge to reach a result of acquittal.” United States v. Benton, 98 F.4th 1119, 1132
(D.C. Cir. 2024) (citation omitted) (quoting United States v. Reynoso, 38 F.4th 1083,
1091 (D.C. Cir. 2022)).
For the reasons discussed in connection with the jury instructions, the district
court did not plainly err by applying a legal standard under §§ 2251(a) and 2256(2)
that is consistent with settled circuit precedent. We therefore reject McCoy’s
argument for a judgment of acquittal based on a new legal standard that he did not
raise in the district court.
2.
McCoy also argues that there was insufficient evidence to sustain the
convictions under settled law as reflected in the jury instructions used at trial. To
prevail on that claim, he must establish that no rational jury could have found the
essential elements of the crime beyond a reasonable doubt. United States v. Ball, 22
F.3d 197, 198 (8th Cir. 1994); see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Our standard of review is “exceedingly deferential.” Ward, 686 F.3d at 882.
McCoy argues that there was insufficient evidence that the minor female
engaged in a lascivious exhibition of the genitals or pubic area. There was
undoubtedly sufficient evidence to establish that McCoy recorded the minor female
as she unwittingly exhibited her genitals and pubic area to the hidden camera. He
contends, however, that the two videos depict “mere nudity,” and that no rational jury
could find that the exhibition of her genitals or pubic area was lascivious.
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The statute requires proof that the defendant produced a visual depiction of a
minor engaged in sexually explicit conduct—in this case, a lascivious exhibition of
the genitals or pubic area. Our cases have explained that “mere nudity” does not
qualify, and that a “lascivious” exhibition must be sexual in nature. United States v.
Kemmerling, 285 F.3d 644, 645-46 (8th Cir. 2002). In deciding whether a rational
jury could find a lascivious exhibition, we have approved and found useful the eight
non-exhaustive criteria set forth in the district court’s jury instruction in this case.
Not all of the factors need be present to support a violation of the statute: “the
inquiry is always case specific, and even if a majority of the Dost factors are absent,
an image may still qualify as a lascivious exhibition of genitals.” Lohse, 797 F.3d at
521.
Our decisions have said that the issue is not whether the images were intended
to appeal to the defendant’s sexual interests, but whether they appear to be of a sexual
character on their face. Kemmerling, 285 F.3d at 646. At the same time, we have
reiterated that a relevant factor is whether the images were “intended to elicit a sexual
response in the viewer,” United States v. Paris, 816 F.3d 1037, 1039 (8th Cir. 2016),
or whether “their purpose appears to be to elicit a sexual response from the viewer.”
Kemmerling, 285 F.3d at 646. “[E]ven images of children acting innocently can be
considered lascivious if they are intended to be sexual.” Johnson, 639 F.3d at 440;
see Ward, 686 F.3d at 883. A minor need not subjectively intend to elicit a sexual
response or express sexual desire: “The ‘lascivious exhibition’ is not the work of the
child, whose innocence is not in question, but of the producer or editor of the video.”
Horn, 187 F.3d at 790. Whether the materials depict a lascivious exhibition is a
question of fact for the jury. United States v. Petroske, 928 F.3d 767, 773 (8th Cir.
2019).5
5Judge Grasz’s dissent, post, at 24, asserts implausibly that our straightforward
recitation of circuit precedent is a “marked departure . . . from our circuit precedent.”
Elsewhere, the dissent itself recognizes that whether a depiction was “intended or
designed to elicit a sexual response in the viewer” is a relevant factor in determining
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In McCoy’s case, there was sufficient evidence to support the jury’s finding of
guilt on Count I. A rational jury could have found that McCoy persuaded, induced,
or enticed the minor female to engage in sexually explicit conduct when he steered
her to the bathroom with the hidden camera, knowing that she was likely to disrobe,
shower, and exhibit her pubic area to the camera.
The jury reasonably found that the minor female engaged in a lascivious
exhibition of the pubic area. The minor was depicted in the nude with her pubic area
displayed. The camera was positioned in a way to record images of the minor’s pubic
area. The video was edited to contain only nude depictions of the minor. McCoy
arranged a setting, outside a shower, that is sexually suggestive: “showers and
bathtubs are frequent hosts to fantasy sexual encounters as portrayed on television
and in film.” United States v. Schuster, 706 F.3d 800, 808 (7th Cir. 2013) (quoting
United States v. Larkin, 629 F.3d 177, 183 (3d Cir. 2010)).
A reasonable jury could find that the minor’s actions in the video carry a sexual
connotation. In addition to revealing her pubic area, she jumped up and down,
causing her breasts to bounce and jiggle, and caressed her breasts while posing for a
lasciviousness under the factors that have been approved by our precedent. Post, at
22; see Petroske, 928 F.3d at 772-73 (holding no error where instruction on meaning
of “lascivious” directed jury to “consider whether Petroske, as the producer or editor
of the videos, intended for the depictions to be sexual”); Paris, 816 F.3d at 1039;
Lohse, 797 F.3d at 520; Ward, 686 F.3d at 884 (holding that jury properly considered
“whether the images were intended to elicit a sexual response in the viewer”);
Johnson, 639 F.3d at 440 (“In determining whether images are ‘lascivious,’ we have
referred to” factors that include “whether the image is intended to elicit a sexual
response in the viewer.”); Wallenfang, 568 F.3d at 657; Horn, 187 F.3d at 789-90; cf.
United States v. Miller, 829 F.3d 519, 525-26 (7th Cir. 2016) (“Of course there is an
element of intent embodied in an evaluation of whether an image is lascivious,” or
else “the statute would criminalize . . . a doctor taking a picture of a minor patient’s
pubic area for a medical diagnosis.”).
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mirror. As the district court put it in explaining why a reasonable jury could find that
the exhibition was sexual in nature, “the videos speak for themselves on the kinds of
things she was doing in the bathroom that teenagers do.” Of course, the statute does
not criminalize inducing a minor to engage in a lascivious exhibition of the female
breast. But this case involves an exhibition of the pubic area, and context is relevant
in determining whether an exhibition of the pubic area was lascivious.
The jury reasonably could find that the secret recording of this activity outside
the shower portrayed the minor female as a sexual object, and that the purpose or
design of the video was to elicit a sexual response in the viewer. When the minor
exhibited her pubic area in the context of this video, a rational jury could find that the
exhibition was sexual in nature, sexually suggestive, and lascivious.
There was likewise sufficient evidence to support the jury’s finding of guilt on
Count II. The jury reasonably could find that the minor female’s exhibition of her
genitals occurred in a sexually suggestive setting as she exited a shower while wet
and nude. In this video, McCoy recorded a straight-on view of the teenager’s genitals
from behind as she bent over forward. A reasonable jury could find that this posture
and image were highly suggestive of sexual activity, regardless of whether the minor
acted with sexual activity in mind. A reasonable jury could find that McCoy’s
surreptitious production portrayed the nude female as a sexual object, and that the
purpose or design of the video was to elicit a sexual response in the viewer. A
rational jury could conclude that the exhibition of genitals was sexual in nature,
sexually suggestive, and lascivious.6
6Judge Stras’s dissent ignores McCoy’s forfeiture and urges a new legal
standard that includes a focus on the sexual intent of the minor victim. Post, at 24
n.15. But under the judicial opinion cited by that dissent, an exhibition is lascivious
where, as here, it is “sexual in nature” or “sexually suggestive,” “regardless of
whether the child subjectively intends to express sexual desire.” United States v.
Hillie, 38 F.4th 235, 237, 241 (D.C. Cir. 2022) (Katsas, J., concurring in the denial
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In Ward, perhaps our most similar precedent, we upheld a jury’s finding that
a defendant’s video recording of a minor undressing in the hallway of a recreational
vehicle depicted a lascivious exhibition of the genitals or pubic area. Although the
video did not show overt sexual activity and could have appeared “like a series of
sexually unfocused pictures of a nude youngster,” 686 F.3d at 883, we held that the
jury reasonably rejected the defendant’s “mere nudity” defense. The defendant in that
case used verbal commands and touches to position the minor so that her pubic area
faced the secret camera. In this case, McCoy directed the minor to use a particular
bathroom and shower with knowledge that his pre-positioned hidden camera would
capture images of her pubic area and genitals. McCoy accomplished his objective
without the need for further commands or touches, but his more efficient approach
to exploitation of the minor does not take his conduct outside the statute.
A reasonable jury could have found that the videos in this case, showing the
minor female bending over while wet in one video and caressing herself in the other,
are more sexually suggestive than the depictions described in Ward. In both cases,
a reasonable jury could find that the defendant viewed the minor female “as a sexual
object,” and that he “composed the images in order to elicit a sexual response in a
viewer—himself.” Id. at 884 (quoting Rivera, 546 F.3d at 250). Without expressing
a view on which case involved stronger evidence on the whole, we conclude that the
evidence in both cases justified submission to a jury for a finding of fact on
lasciviousness. In this case, as in Ward, the evidence was sufficient to meet the
statutory standard when viewed in the light most favorable to the verdict.7
of rehearing en banc). The concurring judge in Hillie, moreover, did not review the
evidence in this case or opine that exhibitions like those induced by McCoy are
insufficient to meet a “sexually suggestive” standard.
7Judge Grasz’s dissent, post, at 21 n.13, suggests opaquely that the record may
have supported a conviction for attempted production of child pornography. McCoy
completed the charged offenses, however, when he induced the minor to engage in
a lascivious exhibition of the pubic area or genitals for the purpose of producing a
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C.
McCoy next argues that the district court made erroneous evidentiary rulings
at trial. First, he contends that the court erred by admitting still images of the minor
female that he created from the two videos. He asserts that the admission of this
evidence created a constructive amendment of the indictment or a variance from the
indictment.
The district court admitted the still images after concluding that the evidence
was intrinsic to the crime charged. The court ruled that the still images were relevant
to the question whether McCoy intentionally made the video recordings of the minor
female. By tending to prove that McCoy purposely made the recordings, the evidence
tended to refute McCoy’s defense that he did not intend to create the videos of the
minor.
There was no constructive amendment of the indictment. Before the still
images were received in evidence, the court instructed the jury that the images were
received as evidence of McCoy’s alleged intent on the date when the videos were
created. The court specifically advised the jury to remember that McCoy was “on
trial only for the crimes charged in the indictment, that is, only for making the two
videos charged in Count 1 and Count 2 of the indictment.” The admission of
evidence regarding McCoy’s alleged intent in creating the videos did not
constructively amend the indictment to charge McCoy with creating the still images.
Nor did the admission of the still images create an impermissible variance from
the indictment. A variance arises when the evidence presented proves facts that are
video of her conduct. There may have been an “attempt” offense on different
facts—if the camera had malfunctioned or if the minor had exhibited her genitals in
a direction away from the hidden camera. But the dissent’s rationale would preclude
a conviction here for both sexual exploitation of a minor and an attempt to do so.
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materially different from those alleged in the indictment. United States v. Whirlwind
Soldier, 499 F.3d 862, 870 (8th Cir. 2007). The defense had fair notice of the still
images, and admission of the images did not change the fact that McCoy was
prosecuted for producing the two videos described in the indictment. Evidence of the
defendant’s intent in producing the videos, even though derived from a source outside
the videos, did not create a material variance from the indictment.
McCoy also challenges the district court’s admission of other images, produced
by hidden cameras, that did not constitute child pornography. The court ruled that the
evidence was admissible under Federal Rule of Evidence 404(b) to show McCoy’s
knowledge, opportunity, and intent to commit the crimes charged, and to address
whether the charged video recordings were the result of a mistake or an accident. The
court gave a limiting instruction to the jury that the evidence could be considered only
for these limited purposes, and that McCoy was on trial only for the crimes charged
in the indictment.
We conclude that there was no abuse of discretion in admitting the evidence
of other acts by McCoy. The images revealed other instances in which McCoy made
surreptitious recordings in his home. They were relevant to show that he knew of the
hidden cameras, intentionally made the charged video recordings, and did not record
the minor by mistake or accident. The other images were similar in kind and were
produced at a time that was not overly remote from the charged offenses. The court
gave the jury a thorough cautionary instruction, and reasonably concluded that the
probative value of the evidence was not substantially outweighed by a risk of unfair
prejudice. There is no reversible error.
* * *
The judgment of the district court is affirmed.
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KELLY, Circuit Judge, with whom ERICKSON and GRASZ, Circuit Judges, join,
dissenting.
Today, the en banc court has conducted the same analysis under the same law
that the panel applied, including the Dost factors—just to reach a different result. See
Fed. R. App. P. 35(a). I concur in Judge Grasz’s dissent, because I continue to agree
with the panel’s original application of that legal standard to the facts of this case. I
write separately to address an additional reason to doubt the usefulness of the
outdated Dost factors, and of reapplying them here.
Dost was decided in 1986. See 636 F. Supp. 828. In that case, the defendants
used a film camera to take still photographs of “totally nude” minors—one of whom
they had pose in “supine and sitting poses” on “draped material, resembling a bed,
with her genitals and breasts fully exposed,” and another they photographed at the
beach with her pubic area “completely exposed”—and then mailed the film to a
processing company to develop it into photographs. Id. at 830, 833. In this case,
surreptitiously captured videos and pictures were stored on flash drives, and cameras
were hidden in a closet and a bathroom vent. See United States v. McCoy, 55 F.4th
658, 660 (8th Cir. 2022), reh’g en banc granted, opinion vacated, No. 21-3895, 2023
WL 2440852 (8th Cir. Mar. 10, 2023). Technology is radically different today. Yet
we continue to apply Dost’s factors to consider images and videos created by
technology that the Dost court could have hardly envisioned.8 With advances in
8For example, the world’s first fully self-contained portable video camera was
only introduced a decade prior to the introduction of the Dost factors. See Laurence
J. Thorpe, The SMPTE Century: Evolution in Cameras and Lenses From 1916 to
2016, SMPTE Motion Imaging J., Aug. 2016, at 1, 5. Similarly, two years after the
introduction of the Dost factors, there were only “about sixty thousand computers
connected to the Internet. Few of them were PCs. Instead, the Net was the province
of mainframes, minicomputers, and professional workstations found at government
offices, universities, and computer science research centers.” Jonathan L. Zittrain,
The Future of the Internet—And How to Stop It 36 (2008) (citations omitted).
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technology have come new and often clandestine ways of producing the types of
images that are the target of federal child pornography statutes. As is evident from
this case, the Dost factors do not easily accommodate these changes.
This is not a problem that begins and ends with the Dost factors. Dost itself, at
least in part, also reflects the arguably outdated language of the statute. The statute’s
description of a minor as “engag[ing] in” “sexually explicit conduct” through the
“lascivious exhibition of [their] anus, genitals, or pubic area” comes dangerously
close to suggesting that the child’s conduct and intent—and thus culpability—are
relevant. 18 U.S.C. §§ 2251(a), 2256(2)(A)(v); Dost, 636 F. Supp. at 832 (including
“whether the visual depiction suggests sexual coyness or a willingness to engage in
sexual activity” as a factor to assess in determining whether the display at issue is
lascivious, but also observing that “[a] child of very tender years . . . would
presumably be incapable of exuding sexual coyness”). The idea that a child can
express “a willingness to engage in sexual activity” is a highly suspect proposition
as both a factual and a legal matter, as we have at least tacitly acknowledged. See
Horn, 187 F.3d at 790 (“The ‘lascivious exhibition’ is not the work of the child,
whose innocence is not in question, but of the producer or editor of the video.”). But
as both the court’s opinion and Judge Grasz’s dissent highlight, interpreting whose
intent matters and how it matters in the context of this statute is a murky endeavor,
and the Dost factors do not assist us in resolving it.
Regardless, under the Federal Rules of Appellate Procedure, “[a]n en banc
hearing or rehearing is not favored and ordinarily will not be ordered unless . . . [it]
is necessary to secure or maintain uniformity of [our] decisions; or . . . the proceeding
involves a question of exceptional importance.” Fed. R. App. P. 35(a). Here, the en
banc court declines to revisit the Dost factors as the standard for determining what
qualifies as a “lascivious exhibition” for purposes of § 2256(2)(A)(v). Instead, just
as numerous panels of our court have done in the past, it has chosen to apply these
“neither definitive nor exhaustive” criteria, see Horn, 187 F.3d at 789, a majority of
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which do not even need to be present to support a violation of the statute, see Lohse,
797 F.3d at 520–21, to the facts of this case. The majority of the en banc court has
disagreed with how the panel resolved McCoy’s sufficiency of the evidence
argument. But I remain doubtful that this disagreement warranted en banc review.
GRASZ, Circuit Judge, with whom SMITH, Chief Judge, and KELLY, ERICKSON,
and STRAS, Circuit Judges, join, dissenting.
The court’s decision today ignores the plain language of 18 U.S.C. §§ 2251(a)
and 2256(2)(A)(v) in order to keep an unsympathetic voyeur in prison. To achieve
this result, the majority expands the scope of the statute beyond its text and into areas
that now call into question the constitutionality of this important statutory protection
for children. Today is the first time this court has held that images briefly capturing
a glimpse of a minor’s pubic area, that are not focused or zoomed in, depict “sexually
explicit conduct.”9 See United States v. Boyle, 700 F.3d 1138, 1146 (8th Cir. 2012)
(stating the statute covers images “focusing on the pubic area of the subject in a way
that is lewd or lurid”). Up to now, we required positioning of the minor’s pubic area
9The plain text of 18 U.S.C. § 2251(a) encompasses only images that depict
“sexually explicit conduct.” Sexually explicit conduct includes certain specified
sexual acts that are not present here. Id. § 2256(2)(A)(i)–(iv). But relevant to this
case, the definition of “sexually explicit conduct” also includes a “lascivious
exhibition” of a minor’s “anus, genitals, or pubic area.” Id. § 2256(2)(A)(v). The
Supreme Court has suggested “lascivious” has the same meaning as “lewd.” United
States v. X-Citement Video, Inc., 513 U.S. 64, 78–79 (1994); see United States v.
Hillie, 39 F.4th 674, 686–87 (D.C. Cir. 2022) (noting the Supreme Court has
recognized lascivious and lewd have the same meaning). And until today, this court
agreed. United States v. Koelling, 992 F.2d 817, 821 (8th Cir. 1993) (noting
“‘lascivious’ is no different in its meaning than ‘lewd,’ a commonsensical term . . .”);
see also United States v. Wallenfang, 568 F.3d 649, 657 (8th Cir. 2009) (“Nudity
alone does not fit this description . . . . A picture is ‘lascivious’ only if it is sexual in
nature.”) (citation omitted). Neither a non-lascivious display of the listed body parts
nor a lascivious display of other body parts meets the statutory definition.
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toward the camera, either through physical or verbal directions, United States v.
Ward, 686 F.3d 879, 883–84 (8th Cir. 2012); focusing of the camera on the pubic
area, United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999); Boyle, 700 F.3d at
1146; or zooming in the camera on the pubic area, United States v. Johnson, 539 F.3d
433, 440 (8th Cir. 2011). The videos in this case depict none of these circumstances.
The first video showed the minor for thirty seconds before she showered. And
at no time in the video was she being touched, positioned, or otherwise directed so
as to capture her pubic area. During much of the thirty seconds, the video showed her
profile as she looked at an offscreen mirror. There is simply no lascivious exhibition
of the pubic area in the video. Specifically, and as the majority agrees, the video
briefly captured her pubic area twice as she prepared to enter the shower, but only for
a few frames of the video. In terms previously followed by this court, this is mere
nudity because there was no “focusing on the pubic area of the subject in a way that
is lewd or lurid.” Boyle, 700 F.3d at 1146. The majority’s analysis also, at least as
to Count 1, rests entirely on what it graphically, and unfairly to the minor, portrays
as a lascivious exhibition of her breasts before she enters the shower.10 While looking
at herself in the mirror, she did briefly cup her breasts and jump, but she did not
lasciviously display her pubic area. The majority’s approach effectively overrules
longstanding precedent. We have up to now unequivocally held (in accordance with
the plain text of the statute) that, “[u]nder federal law, child pornography does not
include lascivious exhibition of the female breast.” United States v. Box, 960 F.3d
1025, 1026 (8th Cir. 2020) (per curiam); see also United States v. Gleich, 397 F.3d
608, 614 (8th Cir. 2005) (holding “taking pictures of a non-pubic area such as the
buttocks does not meet the definition of ‘sexually explicit conduct’”).
10Nowhere in the government’s extensive brief does it even make such an
argument, and for good reason. It is contrary to the plain text of the statute and our
case law.
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The same is true of the second video, which shows the minor subject drying off
with a towel after exiting the shower. During most of this time, she was either mostly
off-screen or partially obscured by the shower door or a bath towel. The video did
capture her bending over to pick up a towel, briefly revealing her pubic area, albeit
obscured in a shadow. As with the first video, the minor did not act in a sexual
manner and was merely drying off. Nor was the camera zoomed in on her pubic area.
Though the majority emphasizes that she was at one point bent over, she was not
acting in a sexually provocative manner. This does not meet the statutory definition
of a “lascivious exhibition of the anus, genitals, or pubic area . . . .” 18 U.S.C.
§ 2256(2)(A)(v).
The majority opinion’s novel approach forces it to retreat from circuit
precedent that was consistent with the words of the statute. The majority ignores the
fact that the government’s foundational argument was not that the images were sexual
on their face. Rather, the government characterized them as “innocent” (i.e., not of
a sexual nature) images that were legally lascivious because McCoy “intended” for
them to be. This “what’s-in-the-mind-of-the-defendant” theory of statutory
construction (which allows for rampant jury speculation) is neither rejected nor
criticized by the majority opinion. On the contrary, the opinion engages in a
sometimes confusing and muddled discussion that provides refuge for the
government’s subjective-guessing standard. See ante, at 9 and 9–10 n.5. Our
previously controlling cases were quite clear that the subjective intent of the
defendant cannot make an image lascivious for purposes of the statute. See, e.g.,
United States v. Wallenfang, 568 F.3d 649, 658 (8th Cir. 2009). But the majority
opinion retreats from this principle.11
11The majority relies on a Seventh Circuit opinion to support its view that the
subjective intent of the defendant “is a relevant factor in determining lasciviousness.”
Ante, at 9–10 n.5 (citing United States v. Miller, 829 F.3d 519, 525–26 (7th Cir.
2016)). However, Miller is irreconcilable with longstanding Eighth Circuit precedent
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The majority opinion also misrepresents our existing case law. The majority
quotes from Horn and Johnson for the proposition that videos may depict sexually
explicit conduct even though the children depicted are themselves innocent. See ante,
at 9. This is of course true. But the image must still include “sexually explicit
conduct” which in this case means a lascivious display of the anus, genitals, or pubic
area. See United States v. Kemmerling, 285 F.3d 644, 646 (8th Cir. 2002) (“A picture
is ‘lascivious’ only if it is sexual in nature.”). The court in Horn said that “focusing
the viewer’s attention on the pubic area” and “freeze-framing” can “create an image
intended to elicit a sexual response in the viewer.” Horn, 187 F.3d at 790. Thus, the
court’s focus was on whether the image was of a sexual nature on its face—not
whether the particular defendant subjectively thought it was. The videos at issue here
include no such “focusing” or “freeze-framing” on the momentary visibility of the
pubic area. And Johnson was an “attempt” case where the evidence showed the
defendant tried to zoom in to obtain “a close-up view of [the minor’s] naked pubic
area.” Johnson, 639 F.3d at 437.12 This is a critical distinction because the subjective
holding “the relevant factual inquiry . . . is not whether the pictures in issue appealed,
or were intended to appeal, to [the defendant’s] sexual interests but whether, on their
face, they appear to be of a sexual character.” Wallenfang, 568 F.3d at 658 (alteration
in original) (quoting United States v. Kemmerling, 285 F.3d 644, 646 (8th Cir. 2002)).
If the court chooses to overrule decades of our precedent, it should do so expressly
and explain why such a change is warranted. This is particularly true because the
change in direction moves the law decidedly away from the statute’s text and into the
vague and uncertain arena of subjective intent.
12Notably, the court in Johnson distinguished the Fifth Circuit’s decision in
United States v. Steen, 634 F.3d 822 (5th Cir. 2011), based on the fact the defendant
in Steen was charged with the completed crime of producing child pornography.
Johnson, 639 F.3d at 439 n.2. In Steen, the Fifth Circuit had held a “[s]urreptitious[]
filming [of] a nude [minor]” that included visibility of the minor’s pubic area for a
“brief second” did not meet the standard for producing child pornography. Steen, 634
F.3d at 827. The Johnson court noted Steen was not applicable because Johnson’s
case “was submitted to the jury only on an attempt theory.” Johnson, 639 F.3d at
439. The majority fails to recognize this important distinction by conflating attempt
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intent of the defendant is relevant in attempt cases. See id. at 441 (“A reasonable jury
could draw a reasonable inference that Johnson intended the videos to be sexual in
nature and to elicit a sexual response in the viewer.”). Here, unlike Johnson, the
government never charged McCoy with the “attempted” production of child
pornography.13
The court avoids its legal obligation to decide whether as a matter of law the
videos contain images of sexually explicit conduct, United States v. Petroske, 928
F.3d 767, 773 (8th Cir. 2019) (reviewing de novo the meaning of lascivious
exhibition for purposes of a sufficiency challenge), by suggesting this is a “question
with production. See ante, at 9–10 n.5 (citing United States v. Petroske, 928 F.3d
767, 772–73 (8th Cir. 2019)). A defendant’s subjective intent is only relevant in an
attempt case; an objective standard is applied to images in completed production
cases. The majority also muddles the distinction between the intent element (mens
rea) for the crime under 18 U.S.C. § 2251(a) and the standard for determining
whether an image contains a lascivious exhibition under 18 U.S.C. § 2256(2)(A)(v).
Under 18 U.S.C. § 2251(a), the government must prove the defendant intentionally
employed, used, persuaded, induced, enticed, or coerced the minor “for the purpose
of producing any visual depiction of [sexually explicit] conduct.” A photo taken by
a parent or doctor for medical diagnosis is obviously not taken “for the purpose” of
producing a visual depiction of “sexually explicit conduct” as required under the
plain terms of the statute. And even if a defendant intended to produce such a visual
depiction, a conviction for completed production—as opposed to attempted
production—still requires that the defendant produced an image that meets the
definition of sexually explicit conduct under 18 U.S.C. § 2256(2)(A)(v).
13This case may well have been different had the government charged McCoy
with attempted production of child pornography. The elements of attempt require
only that the defendant have the “intent to commit the predicate offense” and take
“substantial step[s] toward its commission.” Petroske, 928 F.3d at 773 (quoting
United States v. Young, 613 F.3d 735, 742 (8th Cir. 2010)). But we cannot sustain
a conviction based on what the government might have done, only on what it did.
The jury was instructed on only a completed offense. Thus, McCoy’s conviction rests
solely on the contents of the two charged videos.
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of fact for the jury,” ante, at 9. But this only highlights the decidedly non-textual
approach of using the Dost factors14 to interpret what constitutes a “lascivious
exhibition of the anus, genitals, or pubic area” for purposes of 18 U.S.C.
§ 2256(2)(A)(v). Because the court is sitting en banc, I would recognize the Dost
factors are not appropriate in a jury instruction because they may steer juries away
from applying the plain words of the statute adopted by Congress. For example,
factor 4—whether the minor is fully or partially clothed, or nude—may confuse the
jury. See United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986). “We have
held that more than mere nudity is required before an image can qualify as
‘lascivious’ within the meaning of the statute.” Kemmerling, 285 F.3d at 645–46.
Likewise, factor 2—concerning the setting of the visual depiction—is difficult to
square with any language of the statute. See Dost, 635 F. Supp. at 832. And factor
6—whether the visual depiction is intended or designed to elicit a sexual response in
the viewer—also risks steering jurors away from the statutory language adopted by
Congress. See id. As we have repeatedly held, “the relevant factual inquiry . . . is not
whether the pictures in issue appealed, or were intended to appeal, to [the
defendant’s] sexual interests but whether, on their face, they appear to be of a sexual
character.” Wallenfang, 568 F.3d at 658 (alterations in original) (quoting
Kemmerling, 285 F.3d at 646).
Instead of focusing on the plain meaning of “lascivious exhibition,” the Dost
factors lead jurors “deep into the weeds of evaluating degrees of nudity, or asking
whether an image conveys sexual coyness, expresses a willingness to engage in
sexual activity, or depicts a pose or a place associated with sexual activity.” United
States v. Price, 775 F.3d 828, 840 (7th Cir. 2014). “There is every reason to avoid
importing unnecessary interpretative conundrums into a statute, especially where the
14The Dost factors originated nearly four decades ago from a federal district
court that thought the “‘lascivious exhibition’ determination must be made on a case-
by-case basis using general principles as guides for analysis.” United States v. Dost,
636 F. Supp. 828, 832 (S.D. Cal. 1986).
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statute employs terms that lay people are perfectly capable of understanding.” United
States v. Frabizio, 459 F.3d 80, 88 (1st Cir. 2006). The amorphous standard applied
by the majority today presents a very real danger to the continued validity of the
statute under the Fifth Amendment. The term “lascivious exhibition” was upheld
against constitutional vagueness challenges because it has a meaning a reasonable
person could understand—it means the same thing as lewd. See United States v. X-
Citement Video, Inc., 513 U.S. 64, 78–79 (1994) (rejecting an unconstitutional
vagueness argument “for the reasons stated by the Court of Appeals,” which
explained lascivious and lewd have the same meaning); United States v. Koelling, 992
F.2d 817, 821 (8th Cir. 1993). If the statute’s language is instead construed to allow
pornography convictions for non-lewd images based on a defendant’s subjective
intent—as perceived by a jury—then the reasoning of the cases upholding the statute
under the Fifth Amendment is undermined.
This case is a perfect example of why the court should overrule our case law
blessing the instruction of the jury on the Dost factors to determine whether a visual
depiction could be construed as containing “sexually explicit conduct.” When a jury
needs to assess whether an image is a “lascivious exhibition” of the statutorily
specified body parts, the common definitions of “lascivious” and “exhibition” provide
a sufficient guide. As we long ago recognized, before drifting into the Dost fog,
“[w]hile the words ‘lascivious exhibition of the genitals or pubic area’ are perhaps
less explicit than the other definitions [in the statute], ‘[l]ascivious’ is no different in
its meaning than ‘lewd,’ a commonsensical term . . . .” Koelling, 992 F.2d at 821
(citations omitted).
To be clear, the well-recognized problem with the Dost factors is not the sole
basis for my dissent. Like the unanimous panel that first considered this appeal, I do
not believe the videos contain depictions of sexually explicit conduct as defined by
Congress. McCoy’s failure to object to the Dost-based jury instructions—which is
emphasized by the majority—does not change this fact. The seriousness and
reprehensible nature of McCoy’s conduct is obvious. But that is no reason to ignore
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the plain meaning of the text of the statute. Nor is it reason to remove foundational
guideposts in our controlling caselaw and replace them with puzzling equivocations.
See ante, at 9 (unqualifiedly stating that “a relevant factor is whether the images were
‘intended to elicit a sexual response in the viewer’”) and 9–10 n.5 (positing that the
subjective intent of the defendant “is a relevant factor in determining
lasciviousness”). The majority opinion is a marked departure not only from the text
of the statute but also from our circuit precedent. I respectfully dissent.
STRAS, Circuit Judge, dissenting.
Judge Katsas has it right: “‘lascivious exhibition’ means revealing private parts
in a sexually suggestive way.” United States v. Hillie, 38 F.4th 235, 236 (D.C. Cir.
2022) (Katsas, J., concurring in the denial of rehearing en banc). There is nothing
“lascivious” about someone just “us[ing] the toilet . . . or bath[ing],” id. at 237, which
is all we have here,15 so I concur in Judge Grasz’s dissent.
______________________________
15The court’s approach makes McCoy’s liability depend on whether somebody
could possibly see the victim’s acts as sexually suggestive, even if she is acting
innocently (like here) and he had no influence over what she did. Cf. United States
v. Ward, 686 F.3d 879, 883–84 (8th Cir. 2012) (distinguishing “position[ing] [a child]
using verbal commands” from “peeking . . . upon an unaware subject pursuing
activities unrelated to sex” (quoting United States v. Steen, 634 F.3d 822, 828 (5th
Cir. 2011))). Consider an example. Suppose she had brushed her teeth before getting
dressed. There is nothing “sexually explicit” about that act. 18 U.S.C. § 2256(2)(A).
But what if she dropped the toothpaste cap and bent over to pick it up? The court’s
reasoning implies that her every day, nonsexual conduct would somehow be
transformed into a “lascivious exhibition,” just because the pose might appear sexual
to an audience she did not even know existed. Id. § 2256(2)(A)(v). Like Judge Grasz
and Judge Katsas, rather than treat a predator’s predilections as somehow sexualizing
everything a victim does, I would simply recognize that someone who tries to
sexually exploit a child but fails should be charged with an attempt. See id.
§ 2251(e); United States v. Petroske, 928 F.3d 767, 773 (8th Cir. 2019) (explaining
what an attempt conviction requires); Hillie, 38 F.4th at 241 n.1.
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